Following are terms of a contractual legal agreement (“Agreement”) between you and MedmatchOpen, LLC (hereinafter referred to as either “MedmatchOpen” or “Company”) which govern the access, usage, participation and all other forms of use of the Company website and all other electronic data comprising the Company’s business platform (“Site”). By accessing the Site, you acknowledge that you have read, understood and agree to be bound by the Agreement and to comply with all applicable laws, rules and regulations of any governmental authority or the Company. If you register for a limited-period free trial for our services, the applicable provisions of the Agreement will also govern that free trial period. If you do not agree to be bound by the Agreement, do not register as a User or otherwise use the Site.
BY ACCEPTING THE TERMS, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR BY USING THE SERVICES FOR FREE DURING A TRIAL-FREE PERIOD, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes. The Site may contain other proprietary notices and copyright information, the terms of which must be observed and followed and are by reference incorporated into the Agreement. This Agreement was last updated on May 31st, 2021. It is effective between You and Us as of the date of Your accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means MedmatchOpen services or functionality that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by MedmatchOpen from publicly available sources or third party content providers and made available to You through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means the applicable Service’s Trust and Compliance documentation, and its usage guides and policies, as updated from time to time, accessible via help.MedmatchOpen.ai or login to the applicable Service.
“HIPAA” shall mean Section 262 of the Health Insurance Portability and Accountability Act, P.L. 104-191 (“HIPAA”) which governs the use and transmission of individually identifiable health information.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, but not limited to, viruses, worms, time bombs, malware, adware, Trojan horses and the like.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, and any successor websites.
“Non-MedmatchOpen Application” means a Web-based, mobile, offline or other software process or functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, or is identified as Salesforce Labs or by a similar designation.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Protected Health Information” shall mean any Protected Health Information as defined in HIPAA or any similar information obtained from individuals as a result of the Customer providing products or services.
“Free Services” means Services that MedmatchOpen makes available to You free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or under a free trial, and made available online by Us, including associated MedmatchOpen offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-MedmatchOpen Applications.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the MedmatchOpen, LLC company described in Section 13 (Whom You Are Contracting With, Notices,Governing Law and Jurisdiction).
“You,” “Yourself” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
“Your Data” means electronic data and information submitted by or for You to the Services, excluding Content and Non MedmatchOpen Applications.
2. FREE TRIAL AND FREE SERVICES
2.1 Free Trial.
If You register on Our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s), or (c) termination by Us in our sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING OUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE APPLICABLE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND MEDMATCHOPEN SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, MEDMATCHOPEN AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MEDMATCHOPEN AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. OUR FUNCTIONS
3.1 Provision of Purchased Services.
We (a) make the Services and Content available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable MedmatchOpen standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-MedmatchOpen Application, or denial of service attack. See Section 4.6 for certain Company retained rights.
3.2 Protection of Your Data.
We maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services, (b) prevent or address service or technical problems, (c) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (d) as You expressly permit in writing. Except with respect to a Free Trial, to the extent that MedmatchOpen processes any Personal Data (as defined in the DPA) contained in Customer Data, on Customer’s behalf, in the provision of the Services, the terms of the data processing addendum at https://www.MedmatchOpen.com/dataprocessingaddendum.pdf (“DPA”), which are hereby incorporated by reference, shall apply and the parties agree to comply with such terms. For the purposes of the Standard Contractual Clauses attached to the DPA, when and as applicable, Customer and its applicable Affiliates are each the data exporter, and Customer’s signing of this Agreement, and an applicable Affiliate’s signing of an Order Form, shall be treated as signing of the Standard Contractual Clauses and their Appendices. See Section 4.6 for certain Company retained rights.
3.3 Our Personnel.
We oversee the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein. See Section 4.6 for certain Company retained rights.
3.4 Beta Services.
From time to time, We may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non- MedmatchOpen Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of thirty days from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service. See Section 4.6 for certain Company retained rights.
4. USE OF SERVICES AND CONTENT
Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
To register as a physician, You must hold an active, validly issued State medical license to register with the Site. If You are an owner or manager of an ancillary medical facility, Your facility must be duly licensed in Your State and all personnel providing ancillary medical services must be licensed or certified in their respective field(s) of service.
If You access our Site, You agree to accept responsibility for all activities that occur under Your account or password, and agree that You will not sell, transfer, or assign your membership or any membership rights. You are responsible for maintaining the confidentiality of Your password and for restricting access to Your computer so that others may not access our Site using Your name in whole or in part. By registering, You agree that the Company may contact You in any fashion including, but not limited to, mail, fax, email, or telephone.
If a competing site to the Company is developed by another entity, You may not solicit Users of the Company to terminate, surrender or otherwise leave the Site or transfer business transacted on the Site to such a competing site. You may not transfer any business begun on the Site to any competing site and You may not contact Users of the Site to announce that you are transacting business on a competing site.
You agree not to use the Site to: (a) violate any local, state, national, or international law or regulation; (b) transmit any material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; (c) transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of solicitation; (d) transmit any material that contains adware, malware, spyware, software viruses, or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (e) stalk, harass, or harm another individual, including revealing the identity of any fellow User on the Site; (f) impersonate any person or entity, or otherwise misrepresent your identity or affiliation with a person or entity; (g) use any “robot,” “spider,” “deep link,” “rover,” “scraper,” or any other data-mining technology or automatic or manual process to monitor, cache, frame, mask, extract data from, copy, or distribute any data from the Site, Our network or databases, or attempt to gain unauthorized access to any portion or feature of the Site or any other systems or networks connected to the Site; or (h) interfere with or disrupt the Site or servers on Our networks, or disobey any requirements, procedures, policies, or regulations of networks connected to the Site; (i) probe, scan, or test the vulnerability of the Site or any network connected to the Site, nor breach the security or authentication measures on the Site or any network connected to the Site; (j) reverse look-up, trace, or seek to trace any information on any other user of or visitor to the Site, (k) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Site or the Company’s systems or networks or any systems or networks connected to the Site; (l) use any meta tags or any other “hidden text” utilizing the name or trademarks of MedmatchOpen without our express written consent or (m) forge headers or otherwise manipulate identifiers in order to disguise the origin of any message or transmittal You send to the Company or anyone on or through the Site. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COPYING OR REPRODUCING ANY SERVICES, PROGRAMS, PRODUCTS, OR MATERIALS PROVIDED BY MEDMATCHOPEN TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED.
A high-speed Internet connection is required for proper transmission of the Site. You are responsible for procuring and maintaining the network connections that connect Your network to the Site, including, but not limited to, “browser” software that supports protocols used by the Company, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Site data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by the Company. We assume no responsibility for the reliability or performance of any connections as described in this section.
Actual or attempted unauthorized use of the Site may result in criminal and/or civil prosecution, including, without limitation, punishment under the Computer Fraud and Abuse Act of 1986. The Company reserves the right to view, monitor, and record activity on the Site without notice or permission from You. Any information obtained by monitoring, reviewing, or recording is subject to review by law enforcement organizations in connection with investigation or prosecution of possible criminal activity on the Site. The Company will also comply with all court orders involving requests for such information.
The Site is hosted in the United States. If You are a User accessing the Site from the European Union, Asia, or any other region with laws or regulations governing personal data collection, use, and disclosure, that differ from United States laws, please be advised that through your continued use of the Site, which is governed by U.S. law, the Privacy Notice, and the Agreement, You are transferring Your information to the United States and You consent to that transfer. The Company strives to maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Site data. These safeguards may include encryption of Site data in transmission.
The Company, in its sole discretion, may post advertisements of third parties on the Site. Your correspondence or any other dealings with advertisers found on the Site are solely between You and such advertiser. You agree that the Company shall not be responsible for any loss or damage of any sort incurred as a result of any such dealings or as the result of the presence of such advertisers on this Site. Moreover, the Company shall not be responsible or liable for the statements or conduct of any third party on this Site.
4.2 Usage Limits.
Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities.
You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-MedmatchOpen Applications with which You use Services or Content.
4.4 Usage Restrictions.
You will not (a) make any Service or Content available to anyone other than Users, or use any Service or Content for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-MedmatchOpen Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-MedmatchOpenApplication to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use of any of Our Services in a manner that violates Our Acceptable Use and External Facing Services Policy , or to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4.5 Removal of Content and Non-MedmatchOpen Applications.
If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-MedmatchOpen Application hosted on a Service by You may violate Our Acceptable Use and External-Facing Services Policy or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-MedmatchOpen Application or modify the Non-MedmatchOpen Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-MedmatchOpen Application until the potential violation is resolved.
4.6 Company retained rights.
Among other rights retained by the Company and notwithstanding anything contrary in this Agreement, the Company reserves the right and has absolute discretion to enforce the terms of this Agreement. The Company may, in its sole discretion, immediately terminate the Agreement or any services related to the Site with respect to You, or generally cease offering or deny access to the Site or any portion thereof, at any time for any reason without notice or liability to You or any third party. This Site may become unavailable due to maintenance or malfunction of computer equipment or for other reasons and which, for unforeseen reasons, could result in damages to Your computer systems or operations. You shall be solely responsible for ensuring that any information or content obtained from this Site does not contain any virus or other computer software code or subroutine designed to disable, erase, impair or otherwise damage Your systems, software or data. Without limitation, the Company also reserves the right to report any activity (including the disclosure of appropriate data or merchant information) that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. The Company also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct. If You want to report any violations of these guidelines, please contact the Company.
4.7 Competing site testing.
Users of the Site obtain special knowledge regarding the operations of the Site. Therefore, all Users specifically agree that they shall not participate in any early-testing, beta-testing or other similar form of testing of any competing site that may be formed. While the Company believes in healthy competition, it does not believe that it would be beneficial for the Company or its Users for trade secrets and other intellectual property of the Site to be transmitted to competing sites by its Users and such transmission of any trade secrets or intellectual property of the Site to any person is strictly prohibited. Users specifically acknowledge that such actions may cause irreparable harm to the Company and that the Company may seek all legal remedies available to it against any User who transmits such prohibited information. Please report any possible violations to the address listed in the Notice section.
4.8 Links and message boards.
The Company may provide links, in its sole discretion, to other sites for Your convenience in locating related information, products, and services. These sites have not necessarily been reviewed by the Company and are maintained by third parties over which the Company exercises no control. Accordingly, the Company expressly disclaims any responsibility for the content, the materials, the security of the website, the accuracy of the information, and/or quality of the products or services provided by or advertised on these third party web sites. Moreover, these links do not imply an endorsement with respect to any third party or any website or the products or services provided by any third party. You must take any necessary precautions to ensure that whatever link You select for Your use is free of such items as viruses, worms, Trojan horses and other items of a destructive nature.
The Company encourages and permits text links to this Site. MedmatchOpen is an organization committed to the highest ethics and standards and therefore, any links to this Site should not suggest that the Company promotes or otherwise endorses any third party products, services, causes, campaigns, websites, content, or information. Any website linking to Us may not misrepresent its relationship with Us and may not link to any page of the Site except for the home page. Moreover, no link may be used for commercial or fundraising purposes. The Company also reminds You that a link may not use or include any MedmatchOpen logos, content, or designs without the express written consent of the Company.
The Site may offer Users the ability to post messages on message boards and forums (collectively, “Forums”), which may be open to the public generally, to all Users of the Site, or to a select group of Users. You acknowledge that all content posted on Forums is generated by Users and not the Company, and by posting on Forums You agree to comply with the rules and restrictions set forth above and any other rules specifically applicable to such Forums. The Company reserves the right, but disclaims any obligation or responsibility, to prevent You from posting content to any Forum and to restrict or remove Your content from a Forum or refuse to include Your content in a Forum for any reason at any time, in the Company’s sole discretion and without notice to You.
4.10 Code of Conduct.
In using the Site, You must behave in a civil and respectful manner at all times. Further, You agree to all of the following:
- If You have provided a Username and/or password, then You are responsible for maintaining the confidentiality of Your Username and/or password.
- You are responsible for all activity that occurs under Your account.
- You are solely responsible for Your conduct and any material that You submit, post, and display on the Site, or that You allow others to submit, post, and/or display on the Site under Your account.
- You will not harass, threaten, impersonate, or intimidate other MedmatchOpen Users.
- You will not upload, post, e-mail, transmit, or otherwise make available any content that is unlawful, harmful, threatening, abusive, pornographic, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable.
- You will not upload, post, e-mail, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, affiliate links, or any other form of solicitation.
- You will not transmit any worms, viruses, or any code of a destructive nature.
- You must not violate any Federal, State or local laws in Your jurisdiction (including but not limited to intellectual property laws).
- You must not attempt to restrict another User from using or enjoying the Site and You must not encourage or facilitate violations of the Agreement or any other Company rules or regulations.
- You will not use the Site for any illegal or unauthorized purpose.
- You must not change, modify, adapt or alter the Site or change, modify or alter another website so as to falsely imply that it is associated with the Site.
- If you are an international User, You agree to comply with all local laws regarding online conduct and acceptable content in your jurisdiction as well as all U.S. law.
- You will not create multiple accounts with the intention of artificially inflating ratings or exploiting other features in the Site.
- You will not submit material that is copyrighted, protected by trade secret, or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from the owner to post the material and grant the Company all of the license rights granted herein.
- You shall be solely responsible for your submissions and the consequences of posting or publishing them.
- You will not use the rating system in a malicious way to harm another User or to provide an unfair advantage to yourself.
- You will not threaten, disparage or otherwise intimidate, in any fashion, any User that has posted a rating concerning You that is less than what You believe You deserve.
We provide priority support via email only to paid Users. We do not guarantee a specific response time and We do not provide a service level agreement. In general, We operate weekdays from Monday to Friday, 9am to 5pm Eastern time and Your email will usually receive a response within one working day, but may take longer when We experience high load or during public holidays. Priority support is offered on a per-User. This means that we may limit the amount of support we provide to an individual customer. Our priority support offered to Users is generally limited to 10 emails to our support team per year. We reserve the right to decline further support or charge for additional support beyond the 10 emails. We also reserve the right to immediately terminate service to the Site without a refund if a customer is insulting or abusive to Our support team. We endeavor to provide You with excellent customer service and We have included this clause to protect Our support team and to prevent one single User from overloading Our support system or abusing Our services, thereby impacting the quality of support that other Users receive.
4.12 Use by Children.
We are committed to protecting the privacy of children. You should be aware that this Site is not intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we actually know is a child under the age of 13.
4.13 HIPAA Responsibilities.
You acknowledge that Protected Health Information requires special safeguarding and agree to abide by the laws of your company, state, and HIPAA regarding the protection and disclosure of Protected Health Information contained in the Site.
You agree that it is Your responsibility to implement reasonable and appropriate administrative, technical and physical safeguards to protect the confidentiality, integrity and availability of all Protected Health Information and any and all other confidential information accessible on or through the Site.
Protected Health Information is stored and transmitted according to technology safeguards in agreement with the Health Insurance Portability & Accountability Act of 1996 (HIPAA). End to end encryption as well as secured servers are used to transmit and secure ePHI. Protocols are in place for disposing of ePHI and for handling any suspected security breach.
NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY FOR THE UNAUTHORIZED OR UNLAWFUL DISCLOSURE OR TRANSMISSION OF PROTECTED HEALTH INFORMATION ENTERED BY YOU ON THE SITE.
5. NON-MEDMATCHOPEN PROVIDERS
We or third parties may make available (for example, through a Marketplace, third party Application Program Interface, or otherwise) third-party products or services, including, for example, Non-MedmatchOpen Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-MedmatchOpen provider, product or service is solely between You and the applicable Non-MedmatchOpen provider. We do not warrant or support Non-MedmatchOpen Applications or other Non-MedmatchOpen products or services, whether or not they are designated by Us as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
5.2 Non-MedmatchOpen Applications and Your Data.
If You choose to use a Non-MedmatchOpen Application with a Service, You grant Us permission to allow the Non-MedmatchOpen Application and its provider to access Your Data as required for the interoperation of that Non-MedmatchOpen Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-MedmatchOpen Application or its provider.
5.3 Interoperation with Non-MedmatchOpen Applications.
The Services may contain features designed to interoperate with Non-MedmatchOpen Applications. To use such features, You may be required to obtain access to such Non- MedmatchOpen Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-MedmatchOpen Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-MedmatchOpen Application ceases to make the Non-MedmatchOpen Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2 Invoicing and Payment.
You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges.
If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4 Suspension of Service and Acceleration.
If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending service to You.
6.5 Payment Disputes.
We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessible against Us based on Our income, property and employees.
6.7 Future Functionality.
You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
We may, at our sole discretion, choose to offer credits or other discounts for the Site in various ways, including but not limited to, coupons, promotional campaigns and referrals. The Company reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by you to offset stated subscription charges. Credits may only be applied to subscription charges specifically identified by the Company when issuing the credit. Credits can only be used by you and are non-transferable. To the extent that you have been awarded credits, unless the instrument (including any coupon) states an earlier expiration date, these credits shall expire and no longer be redeemable six (6) months from the date the credit was issued.
7. PROPRIETARY RIGHTS AND LICENSES
7.1 Reservation of Rights.
Subject to the limited rights expressly granted hereunder, We and Our Affiliates, Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 Access to and Use of Content.
You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
This Site is provided by MedmatchOpen, LLC. As a registered User, and subject to your full compliance at all times with the terms of this Agreement and payment of all applicable fees, You are provided with a personal, revocable, limited, non-exclusive, royalty-free, nontransferable license to use this Site conditioned on Your continued compliance with the Agreement. You may print and download materials and information from this Site solely for Your personal use, provided that all hard copies contain all copyright and other applicable notices contained in such materials and information. This is a license and not an assignment or sale. Any rights granted hereby are licensed and not sold or otherwise transferred to You. Accordingly, You expressly acknowledge and agree that the Company transfers no ownership or intellectual property interest in and to the Site to You or anyone else.
Notwithstanding the foregoing, You may not modify, alter, translate, decompile, create derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, reproduce, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, grant a security interest in, transfer any right(s) in, or otherwise use in any manner not expressly permitted herein the Site. You may not frame or utilize framing techniques to enclose the Site or any portion thereof without Our prior written consent.
7.3 License to Host Your Data and Applications.
You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, display and use any Non-MedmatchOpen Applications and program code created by or for You using a Service or for use by You with the Services, and Your Data, each as reasonably necessary for Us to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-MedmatchOpen Application or such program code.
7.4 License to Use Feedback.
You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
7.5 Federal Government End Use Provisions.
We provide the Services, including related software and technology that may be delivered to a federal government end user, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as specified in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227- 7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Us to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
7.6 Copyrights, trademarks and Intellectual Property.
The copyright in all materials provided on this Site is held by MedmatchOpen or by the original creator of the material. Except as stated herein, none of the materials may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including, but not limited to, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the Company or the copyright owner. You may not “mirror” any material contained on this Site without the Company’s express written permission. Any unauthorized use of the materials contained on this Site may violate copyright laws, trademark laws, the laws of privacy and publicity and/or communications regulations and statutes. All content and functionality on this Site, including text, graphics, logos, icons, and images and the selection and arrangement thereof, are the exclusive property of MedmatchOpen or its licensors and is protected by U.S. and international copyright laws. All rights not expressly granted are reserved.
The trademarks, service marks and logos (the “Trademarks”) used and displayed on this Site are registered and unregistered Trademarks of MedmatchOpen. Other trademarks, service marks and trade names may be owned by others. Nothing on this Site should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark or any other MedmatchOpen intellectual property displayed on this Site. The Company aggressively enforces its intellectual property rights to the fullest extent of the law. The name MedmatchOpen and any other Trademarks shall not be used in any way, including in advertising or publicity pertaining to distribution of materials on this Site, without prior written permission from the Company.
We respect the intellectual property rights of others. Accordingly, we have a policy of removing third-party submissions that we reasonably believe may violate copyright law, suspending access to the Site (or any portion thereof) from any person who uses the Site in apparent violation of copyright law, and/or terminating in appropriate circumstances the account of any User who uses the Site in apparent violation of copyright law. Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of alleged copyright infringement and for addressing such allegations. If You believe a user of the Site is infringing Your copyright, please provide written notice to Our agent listed in the Notice section of this Agreement for notice of claims of copyright infringement.
Your written notice must: (a) contain Your physical or electronic signature; (b) identify the copyrighted work alleged to have been infringed; (c) identify the allegedly infringing material in a sufficiently precise manner to allow Us to locate that material; (d) contain adequate information by which We can contact You (including postal address, telephone number, and e- mail address); (e) contain a statement that You have a good-faith belief that use of the copyrighted material is not authorized by the copyright owner, the copyright owner’s agent, or the law; (f) contain a statement that the information in the written notice is accurate; and (g) contain a statement, under penalty of perjury, that You are authorized to act on behalf of the copyright owner.
If You believe that Your trademark is being used improperly or without authorization on the Site, the owner or an agent of the owner may notify Us. We ask that any complaints provide the accurate identity of the owner, how We may contact You, and the specific nature of the complaint.
Unless otherwise noted, MedmatchOpen owns all content available on this Site, including but not limited to the text, photographs, images, graphics, audio clips, and any compilation or arrangement thereof. All content is protected by United States and international laws regarding copyrights, trademarks, trade secrets and other proprietary rights.
8.1 Definition of Confidential Information.
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-MedmatchOpen Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.2 Compelled Disclosure.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
9.1 Leading edge technology.
MedmatchOpen operates in a fashion as to provide leading-edge technology to its Users. The technology industry is rapidly evolving, highly susceptible to security issues and very difficult to maintain current trends and safety concerns. For this and other reasons, You acknowledge the necessity for MedmatchOpen to disclaim ALL warranties and damages and to severely limit its liability to Users and all other interested parties. Any claims that You may bring against the Company shall be solely against the Company and not be enforceable against any other affiliated entity, any officer, any director or any employee of the Company.
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
NOTWITHSTANDING ANYTHING CONTRARY IN THIS AGREEMENT, THE SITE, INCLUDING ALL SERVICES, PROFILES, RECORDKEEPING, CONTENT, SOFTWARE, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, IS PROVIDED TO SITE VISITORS, USERS, AND ANY OTHER THIRD PARTY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MEDMATCHOPEN DOES NOT WARRANT THAT THE SERVICES, FUNCTIONS, FEATURES OR CONTENT CONTAINED IN THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; NOR DO THEY MAKE ANY WARRANTY OR REPRESENTATION AS TO THE ACCURACY, MEANINGFULNESS, OR RELIABILITY OF THE SITE, CONTENT, PROFILES, RECORDKEEPING, TAX REPORTING, MATERIALS, SERVICES, INFORMATION OR FUNCTIONS MADE ACCESSIBLE BY THE SITE, ANY PRODUCTS OR SERVICES OF OR HYPERTEXT LINKS TO, THIRD PARTIES OR FOR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE SITE OR ANY LINKED SITE. MEDMATCHOPEN MAKES NO WARRANTIES AND SHALL NOT BE LIABLE FOR THE USE OF THE SITE, INCLUDING WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN UNDER ANY DIRECT OR INDIRECT CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO THE COMPANY’S NEGLIGENCE. IF YOU ARE DISSATISFIED WITH THE SITE, SERVICES OR ANY MATERIALS ON THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE. THE COMPANY ASSUMES NO LIABILITY FOR THE DELETION OR FAILURE TO STORE ANY MESSAGE.
UNDER NO CIRCUMSTANCES SHALL MEDMATCHOPEN, ITS AFFILIATES, SUBSIDIARIES, INVESTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE AND THE CONTENT, MATERIALS, SERVICES AND FUNCTIONS IN THE SITE, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF SUCH ENTITIES OR AN AUTHORIZED REPRESENTATIVE THEREOF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. WHERE STATES DO NOT ALLOW THE EXCLUSION OF LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE DAMAGES SHALL BE LIMITED TO THE GREATEST EXTENT ALLOWABLE BY SUCH STATE. IN NO EVENT SHALL THE TOTAL LIABILITY OF MEDMATCHOPEN, ITS AFFILIATES, SUBSIDIARIES, INVESTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, REPRESENTATIVES, ATTORNEYS AND THEIR RESPECTIVE HEIRS, SUCCESSORS AND ASSIGNS FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE TERMS AND CONDITIONS OF USE OR YOUR USE OF THE SITE OR SERVICES EXCEED, IN THE AGGREGATE, THE ANNUAL AMOUNT PAID BY YOU AS A USER FEE.
You specifically grant a general release in favor of the Company for any disputes that may arise between Users and any third party. Furthermore, You expressly waive all rights under Section 1542 of the California Civil Code, which provides that ‘A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release which if known by him or her must have materially affected his or her settlement with the debtor.’
10. MUTUAL INDEMNIFICATION
10.1 Indemnification by Us.
We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if our Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; (4) a Claim against You is based on traditional online storefront commerce functionality that is or was in general use in the industry; or (5) a Claim Against You arises from Content, a Non- MedmatchOpen Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
10.2 Indemnification by You.
You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that (a) any of Your Data or Your use of Your Data with our Services, (b) a Non-MedmatchOpen Application provided by You, or (c) the combination of a Non-MedmatchOpen Application provided by You and used with Our Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your Expense.
This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against the other party for any type of claim described in this Section 10.
11. LIMITATION OF LIABILITY
11.1 Limitation of Liability.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF COMPANY TOGETHER WITH ALL OF ITS AFFILIATES, EMPLOYEES, OFFICERS, OWNERS AND AGENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
11.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL COMPANY OR ITS AFFILIATES, EMPLOYEES, OFFICERS, OWNERS AND AGENTS HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
12.1 Term of Agreement.
This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or has been terminated.
12.2 Term of Purchased Subscriptions.
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 7% above the applicable pricing in the prior term, unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4 Refund or Payment upon Termination.
If this Agreement is terminated by You in accordance with Section 12.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 12.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us For The period prior to the effective date of termination.
12.5 Your Data Portability and Deletion.
Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
12.6 Surviving Provisions.
The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,”, “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-MedmatchOpen Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
13. WHOM YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
You should direct notices to under this Agreement to MedmatchOpen, LLC, a Delaware Limited Liability Company, 1935 Commerce Lane, Suite 6, Jupiter, FL 33458, U.S.A., Attn: VP, Legal.
13.2 Manner of Giving Notice.
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
13.3 Agreement to Governing Law and Jurisdiction.
The Agreement shall be governed by the laws of the State of Florida. Each party hereby consents to the exclusive personal jurisdiction and venue of the federal and state courts with jurisdiction in Palm Beach County, Florida, for a resolution of all disputes arising out of the construction, interpretation, or enforcement of any provision of the Agreement, and each party hereby waives the claim or defense that such courts constitute an inconvenient forum. EACH PARTY HEREBY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT OR PRIVILEGE OF A TRIAL BY JURY IN CONNECTION WITH ANY SUCH MATTER. In the event any litigation or any similar proceeding (collectively, “Litigation”) is commenced or defended by any party claiming, in such Litigation or defense, a breach of the Agreement by the other party, or attempting to enforce any right or remedy under the Agreement, or seeking an interpretation or construction of the Agreement, and, in the event such commencing or defending party is successful on the merits of such claim or defense, and substantially prevails in the litigation (a “Prevailing Party”), the party against whom such claim is made or such defense is asserted shall pay to the Prevailing Party all costs and expenses, including, without limitation, court costs, attorneys’ fees, and costs of expert witnesses and investigation (whether at trial, upon appeal, or during pre-trial investigation), of the Prevailing Party in prosecuting such claim or establishing such defense. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.4 No Agency.
For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other MedmatchOpen, LLC company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
14. GENERAL PROVISIONS
14.1 Export Compliance.
The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at legal support@MedmatchOpen.com
14.3 Entire Agreement and Order of Precedence.
This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.5 Relationship of the Parties.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.6 Third-Party Beneficiaries.
There are no third-party beneficiaries under this Agreement.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
MedmatchOpen may, in its sole discretion and without notice, amend the Agreement at any time by updating this posting. Amendments to the Agreement will be effective upon the Company’s posting of such updated terms at this location. Your continued access or use of the Site after such posting constitutes your consent to be bound by the Agreement, as amended. If you object to any amended terms, your sole recourse shall be to discontinue the use of the Site upon your first visit to the Site after such an amendment has been posted.
14.10 Reservation of Rights.
Any rights not expressly granted by the Company herein are reserved to the Company.
14.11 Password Policy.
Access to and use of password protected and/or secure areas of the Site is restricted to authorized Users only. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution. You are solely responsible for the protection of Your own unique password.
14.13 Force Majeure.
Company shall not be liable for any losses arising out of the delay or interruption of its performance of obligations due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions by a third party, infiltration or disruption of the Site by a third party, or other catastrophes or occurrences that are beyond Company’s reasonable control.